Chief Great Ovedje Ogboru v. Dr. Emmanuel Ewetan Uduaghan

On the 17/11/2011, I struck out these appeals and promised to give my reasons at a later date. I have now seen the reasons for judgment just delivered by Odili, JSC and I entirely agree with it and I adopt it as mine.

P.14

I have had the privilege of reading in draft, the lead judgment of my learned brother, MARY U. PETER-ODILI, JSC just delivered and I agree with the reasoning and conclusion therein stated.

The facts relevant to the determination of the issues have been stated in the lead judgment and I consequently have no need of repeating them herein except as may be needed to emphasis the point being made.

When this appeal came up for hearing this Court called on all Counsel for the parties to address it on two issues, arising from the appeals. These are:-

“(1) whether the Court has jurisdiction to hear and determine the appeals having regards to the fact that the cause of action arose from a re-run election conducted under the 1999 Constitution where the Court of Appeal is the final Court of appeal in relation thereto, and,

(2) whether having regards to the issue of the expiration of the 1st respondent, there is in existence a live issue to be dealt with in the appeals”.

P.15

In arguing the issues, DR. SAGAY, SAN submitted that the court has the jurisdiction to entertain the appeals. He stated that the election petition which gave rise to the appeals was filed on 27th January, 2011, following a declaration of the results of a re-run election conducted on 6th January, 2011 on 7th January, 2011; that the second amendment of the 1999 Constitution came into existence on 29th November, 2010, even though the President signed the Act on 10th January, 2011. Relying on section 2 of the Interpretation Act, Cap 123 Laws of the Federation of Nigeria, 2004 (vol.8) learned Senior Counsel submitted that once the National Assembly passes a Bill, it does not need Presidential assent for it to come into force. It is the further submission of learned Senior Counsel that the law applicable to an action is that which was in existence when the cause of action arose, which Senior Counsel contends is the 1999 Constitution as amended with effect from 29th November, 2011; that by virtue of the provisions of Section 285(7) of the amended 1999 Constitution, appeals on governorship election now come before this Court, relying also on Section 233(2)(iv) of the amended 1999 Constitution.

On the second issue, learned Senior Counsel submitted that there is a life issue before the court to be determined in the appeals notwithstanding the fact that the term of the 1st respondent had lapsed. In the same breath learn Senior Counsel submitted that the tenure of the 1st respondent has not lapsed since the election to which it relates was conducted in January, 2011. Senior Counsel referred the Court to the case of Plateau State vs A-G of the Federation (2006) 25 WRN 1 at 91 and urged the Court to allow the appeals.

On his part, learned Senior Counsel for the 1st respondent, CHIEF WOLE OLANIPEKUN, SAN submitted that the two appeals are off-shoots of the April, 2007, general elections and that the lower Court at page 106 vol. 3 of the record distinguished between a re-run election and a proper election;

P.16

That since the 1st respondent could not have appealed against the decision of the lower Court which ordered a re-run election by virtue of Section 246(3) of the 1999 Constitution being the law applicable at the time, it stands to reason that any appeal arising from that cause of action cannot come before this Court, relying on Olaniya vs Aroyehun (1991) 5 NWLR (Pt. 194) 652 at 691; Olagbegi VS. A-G Ondo State (1984) 5 NCLR 147; that Section 2(1) of the Interpretation Act is against the appellants.

On the second issue, learned Senior Counsel submitted that the Courts do not act in vain nor justice command the impossible and urged the Court to strike out the appeals or in the alternative dismiss same.

Learned Senior Counsel for the 2nd respondent, ADENIPEKUN, SAN adopted the submission of his learned friend, and added that the re-run election of 6th January, 2011 was before the signing into law of the Act amending the 1999 Constitution and urged the court to resolve the issues in favour of the 2nd respondent.

Learned Counsel for the 3rd respondent AHMED RAJI, ESQ, also adopted the submission of Senior Counsel for the 1st – 2nd respondents and in addition relied on Section 58 of the constitution to submit that the assent of Mr. President is a condition precedent for a Bill to become an Act and that any other interpretation would be unconstitutional.

On the second issue, it is the opinion of learned Counsel that the appeals are now mere academic exercise in view of the decision of BUBA J to which no appeal had been filed.

At the conclusion of the submissions of all Counsel, this court rose and after consideration of the submissions together with the briefs of argument filed in the appeals and the records, delivered on the Bench Judgment in which the Court held that it has no jurisdiction in entertaining the appeals and consequently struck them out promising to give the reasons for the decision on the 16th day of December, 2011.

P.17

Below, therefore, are my reasons for striking out the appeal for lack of jurisdiction.

There is no doubt whatsoever, and in fact both parties agree that the election of 6th January, 2011 was a re-run election ordered by the lower Court in a judgment on an appeal arising from the decision of the election tribunal following the declaration of the 1st respondent as the duly elected governor of Delta State in the April, 2007 general election in Nigeria.

The above being the case, it follows that the cause of action arose from the declaration of the 1st respondent as the winner of the said election which appellant was dissatisfied with.

Parties are also in agreement that the election of April, 2007 was conducted under the Electoral Act, 2006 and the 1999 Constitution prior to its amendment.

It is a settled principle of law that the applicable law to any cause of action is the law in existence or as it existed at the time the cause of action arose not that at the time the action was instituted or the judgment written. In applying the above principle to the facts of this case, learned Senior Counsel for the appellants contended that since the complaint giving rise to the instant appeals arose from the re-run election of 6th January, 2011 in Delta state and the amendment to the 1999 Constitution came into effect, accorded to senior counsel on the 29th day of November, 2011, it is the amended 1999 Constitution that governs the cause of action and therefore applicable thereby granting a right of appeal to the appellants to appeal against the decision of the lower court in a governorship election to this Court.

P.18

I hold the considered opinion that a resolution of the first issue will determine whether or not to consider the second issue since if the Court decides that it has no jurisdiction to hear and determine the appeals that would be the end of the matter as the appeals must be struck out for want of jurisdiction thereby making it unnecessary to determine the second issue as to whether the appeals are alive or dead, the result of which will be striking out of the appeals if found to be dead.

It is not in dispute that by virtue of the provision of Section 246(3) of the 1999 Constitution prior to the amendment, the Court of Appeal is the final Court of appeal in relation to governorship election petitions. The section provides as follows:-

“(3) The decisions of the Court of Appeal arising from election petitions shall be final”.

If it is demonstrated that the applicable law to the cause of action giving rise to the instant appeals is the provisions of the original 1999 Constitution supra, then it becomes obvious that the irresistible conclusion must be that the appellants have no further right of appeal to this Court in a governorship election petition and as such this Court has no jurisdiction to entertain same. On the other hand and following the amendment to the said 1999 Constitution, the law now is as provided for in Section 233(2)(e) (iv) thereof, which enacts as follows:-

“(2) An appeal shall lie from the decisions of the Court of Appeal to the Supreme Court as of right in the following cases;-

(e) Decisions on any question….

(iv) Whether any person has been validity elected to the office of governor or deputy governor under this constitution”.

P.19

It is very clear and I hereby hold that the above provision of the amended 1999 Constitution grants a right of appeal to an appellant who desires to appeal against the decision of the Court of Appeal in a governorship election matter to this Court thereby conferring the requisite jurisdiction on this Court to hear and determine such an appeal which had hitherto stopped at the Court of Appeal as the final Court of Appeal. The above positions being clear and unambiguous, they admit of no interpretation and consequently must be applied as they stand.

In that case, if it is found that the amended 1999 Constitution is the applicable law at the time the cause of action arose, then appellants have a right of appeal to this Court and in consequently this court has the jurisdiction to hear and determine the appeals.

To resolve the issue of the applicable law to the cause of action in the instant case one has to determine the commencement date of the amended 1999 Constitution as the position of the law prior to that amendment is very clear and unambiguous. Is it the 29th day of November, 2010 as contended by learned Senior Counsel for the appellants or the 10th day of January, 2011 as contended by Counsel for the respondents?

From the document itself, i.e. the 1999 Constitution as amended, the President of the Federal Republic of Nigeria assented to the Bill which brought the amendments into life/being on the 10th day of January, 2011 which date is not in dispute in the case. What is, however, in dispute is whether it was on that date that the 1999 Constitution, as amended came into force or became effective.

To resolve the issue, one has to look at Section 2 of the Interpretation Act, Cap 123 Laws of the Federation of Nigeria, 2004, which provides as follows:-

P.20

“(i) An Act is passed when the President assents to the Bill for the Act whether or not the Act then comes into force.

(ii) Where no other provision is made as to the time when a particular enactment is to come into force, it shall, subject to the following subsection, come into force-

(a) in the case of an enactment contained in an Act of the National Assembly, on the day when the Act is passed,

(b) where an enactment is expressed to come into force on a particular day it shall be construed as coming into force immediately on the expiration of the previous day”.

Also relevant are the provisions of Section 58(1) of the 1999 Constitution (original and as amended) which enacts thus:

“(i) the power of the National Assembly to make laws shall be exercised by Bills passed by both the Senate and the House of Representatives and except as otherwise provided by subsection (5) of this section assented to by the President.”

It is clear from the above constitutional provisions that any Bill passed by the National Assembly must be assented to by Mr. President before it becomes an Act of the National Assembly or comes alive and be enforceable. It is also very clear that the date Mr. President signs or assents to the Bill is very crucial in determining when the Bill becomes an Act except otherwise stated. In the instant case, it was the 10th day of January, 2010.

It is true that an Act comes into effect on the day Mr. President assents to the Bill though its commencement date may be deferred to a date in the future, which is not the case here. Rather, it is the contention of the appellants that the commencement date is the 29th day of November, 2010 as allegedly stated in the Act, which is a date that is prior to the President’s assent.

P.21

I hold the view that to accept that view will result in absurdity as it would amount to holding that the 1999 Constitution, as amended applies retrospectively, which is very much frowned upon by law see Uttih vs Onopivwe (1991) 1 NWLR (Pt 166) 166. It would also be contrary to the provisions of the Interpretation Act and Section 58(1) of the 1999 Constitution earlier reproduced in this judgment.

It is a fact that the cause of action arose from the 2007 general elections which resulted in a election petition and an appeal thereon to the lower Court, which Court ordered a re-run election; that the election was conducted under the Electoral Act, 2006; that the re-run election of 6th January, 2010 was conducted also under the Electoral Act, 2006 and the original 1999 Constitution. It should also be noted that the re-run election was contested by the same parties who contested the 2007 April general election using the same list of candidates – there was no new primaries conducted by the political parties to choose new candidates to contest the re-run election.

I therefore hold the view that the applicable law to the cause of action in the instant case is Section 246(3) of the 1999 Constitution which makes the Court of Appeal the final Court of Appeal in governorship election matters and that this Court is, in the circumstance, without jurisdiction to hear and determine the appeals now pending before it and are consequently struck out.

It is for the above reasons and the fuller ones contained in the reasons for judgment read this morning by my learned brother, MARY U. PETER-ODILI, JSC that I strike out the appeals for want of jurisdiction. I abide by the consequential order as to costs. Appeal Nos. SC/361/2011 and SC/362/2011 are hereby struck out.

P.22

On 17-11-2011, when the two consolidated appeals were heard, this Court requested Counsel to the parties to address us on whether the Court has jurisdiction to entertain the appeals.

The first point is whether the Court can hear an appeal which emanates from the 2007 General Elections in view of the provisions of Section 246(3) of the 1999 Constitution before its amendment. The second point is whether the re-run election of 06-01-11 and the ensuing result of 07-01-2011 before 10-01-2011, when the President signed the amended Constitution imbues this Court with jurisdiction. Another issue is whether the tenure of the 1st Respondent, having expired on 29-05-2011, there is an existing res to be determined by this Court.

Parties are ad idem that the re-run election was conducted on 06-01-2011 and results were out on 07-01-2011. The amended Constitution was signed by the President on 10-01-2011. The cause of action arose before the Constitution was amended. The law which is therefore applicable is the law before the amendment. It goes without saying that the Court lacks jurisdiction to entertain these appeals. See: Mustapha v. Gov. of Lagos State (1987) 2 NWLR (Pt. 58) 539 at 591; Olaniyi v. Aroyehun (1991) 5 NWLR (Pt.194) 652 at 691.

Apart from the above, this Court has consistently pronounced that by virtue of the clear provisions of Section 246 (3) of the 1999 Constitution before its amendment, the Court of Appeal should have the final say on this matter.

P.23

That is how it should be. The word ‘final’ as employed, connotes conclusiveness; a matter never to be revisited. The matter reached its terminal destination. See Awuse v. Odili (2003) 18 NWLR (Pt. 851) 116, Onuaguluchi v. Ndu (2001) FWLR (Pt.45) 740; (2001) 7 NWLR (Pt.712) 309, Okonkwo v. Ngige (2007) All FWLR (Pt. 393) 1, (2007) 12 NWLR (Pt. 1047) 191; Emordi v. Igebeke (2011) All FWLR (Pt. 580) 1262.

To the knowledge of the parties, Buba J. of the Federal High Court decided that the tenure of the 1st Respondent expired on 29-05-2011. There is no appeal on same. It constitutes a judgment in rem and binds all the parties. The petition of the appellant is an academic exercise. This Court, like nature, does not act in vain. There is no utility value that will enure to the benefit of the appellant as the 1st respondent is not now occupying his seat on the re-run election.

The Court, no doubt lacks jurisdiction; looked at from all angles. The appellants’ appeal equates with what I may refer to as abuse of Court process.

I agree with the reasons advanced by my learned brother, Peter-Odili, JSC. For the reasons stated by me, the consolidated appeals are hereby struck out. Each party should bear his/its own costs.

P.24

I had read in draft, the judgment just delivered by my learned brother, M. U. Peter-Odili JSC. At the hearing of this appeal on the 17th of November, 2011, the two appeals SC.361/2011 and SC.362/2011 were consolidated pursuant to the order of this Court with the consent of the Counsel to the parties. The background facts of this case and the issues settled, for determination in the briefs of the parties are as eloquently restated by my learned brother in the Lead Judgment. This Court however at the sitting of 17/11/10 observed that there were only two key questions of jurisdiction raised by this appeal which are:

Issues:

(1) Whether the Court has jurisdiction to hear and determine the appeals having regards to the fact that the cause of action arose from a re-run election conducted under the 1999 Constitution where the Court of Appeal is the final Court of Appeal in relation thereto and

(2) Whether having regards to the issue of the expiration of the term of the 1st respondent there is in existence a live issue to be dealt with in the appeals.

P.25

The Court invited address from Counsel to the parties on the foregoing questions.

Dr. O. M. Sagay, Learned Senior Counsel for the appellant was emphatic in his submission that the Supreme Court has jurisdiction to entertain these appeals. He supported this contention with facts that the petition was filed on 27/1/11 pursuant to the 1st Respondent being declared as winner of the 6/1/11 election. The result of the election was released on the 7/1/11. The election fell within the period of the 2nd amendment to the Constitution which came into force on the 29th of November, 2010, to which the President gave assent on the 10th of January, 2011. The effective date of commencement was the date the amendment was effected and not the date on which the President signed the Bills.

He relied on Section 2 of the Interpretation Act Cap 123 Laws of the Federation 2004 Vol. 8 to hold that:-

(a) An act is passed when the President assents the Bill.

(b) Once the National Assembly signs a Bill, it does not require the assent of the President for it to come into force.

The Law applicable is the law in operation when the cause of action arose which in this case is the 1999 Constitution as amended on 29/11/10. The cause of action arose on the 7th of January, 2011. Provision of Section 179(2)(a) and (b) confers the right on the petitioner to re-run and contest. By virtue of Section 285(7) of the Constitution as amended appeals can now come before this Court provided the matter is decided within 60 days.

In view, of Section 233(1) and (2) (iv) of the Constitution the appellant has come properly before this Court. Consequently, the learned Senior Counsel submitted that there is a live issue before the Court.

P.26

Though there was a fresh election-the old tenure still exists for the appellant. The election conducted on 27/1/11 was done to undermine the jurisdiction of this Court. If the Court finds this appeal to be meritorious, it is an appropriate circumstance to invoke Section 22 of the Supreme Court Act. The learned Senior Counsel cited the case Plataeu State of Nigeria us. A.G.F (2006) 35 WRN pg. 7 at pg 97, lines 30 – 40 on when a matter is supposed to be spent. The Court is urged to allow the appeal.

Chief Olanipekun Learned Senior Counsel for the 1st respondent submitted on issue one that the two consolidated appeals are the off-springs of April, 2007 governorship election. The lower Court on page 106 of Vol. 3 of the record captured that point and the appellant did not appeal against it. The learned Senior Counsel thereafter submitted that the appellant cannot legally appeal to the Supreme Court on that re-run order by virtue of Section 246 (3) of the Constitution, which makes the Court of Appeal the final Court. That was the law which regulated the cause of action. If the appellant has no right of appeal based on that section of the Constitution any appeal on that decision cannot come before this Court. The learned Senior Counsel cited cases:- Olaniyi vs. Aroyehun (1991) 5 NWLR pt. 194, pg. 652 at 691, Olagbegi vs. A. G. Ondo State (1984) 5 NCLR, pg. 147, Ecoconsult vs. Pancho Villa Ltd. (1999) 1 NWLR pt. 588, pg. 507

There is Constitutional bar to the Supreme Court to hear this appeal. Section 2(1) of the interpretation Act cited by the appellant is against his proposition as the re-run was held on the 6/1/11, while the President signed the amendment to the Constitution on 10/1/11.

P.27

On issue No. 2 the learned Senior Counsel referred this Court to pages 105 – 106 of the Record of the lower Court where the lower Court concluded that on the State of the Law and Sections of the Constitution it is not possible to order a re-run upon another re-run. The Courts of Law like nature does not act in vain, Justice cannot command the impossible. This appeal has no utility value as the 1st respondent is no longer occupying the Seat of Government of Delta State based on the re-run. The judgment to be obtained now is not against this new election. Case of Plateau State vs. A.G.F. cited by the appellant is against him. The Court is urged to dismiss the appeal as being an abuse of Court process and academic.

Mr. Adebayo Olanipekun learned Senior Counsel for the 2nd respondent adopted the submission of the Learned Counsel for the 1st respondent and cited the case Mustapha vs. Governor of Lagos State (1987) 2 NWLR pt. 58, pg. 539 at pg. 541. The learned Senior Counsel submitted on issue 2 that the issue of tenure of the 1st respondent was decided as a judgment in rem before the Federal High Court and there was no appeal against it.

Mr. Raji learned Counsel for the 3rd respondent, adopted the submission of the learned Counsel for the 1st – 2nd respondents. In addition, the learned Counsel submitted that to hold that the bill of amendment does not require a Presidential consent is against Section 58(1) of the Constitution. The Constitution make the signature of the President a condition precedent for the promulgation of the Bill. Any Law to the contrary is void.

The appellant filed a fresh petition regardless of the pronouncement of Buba J of the Federal High Court in suit No. FHC/ASB/CS/20/2011. The contention of the appellant now is an academic exercise and an abuse of the process of this Court.

I have thoroughly digested the elucidating submission of all learned Counsel appearing for the parties. There was a challenge to the jurisdiction of this Court by the substance of these consolidated appeals before this Court.

P.28

The salient points not disputed.

(a) The origin of the cause of action in the two appeals was the 2007 governorship election in Delta State based on the 2006 Electoral Act. The two consolidated appeals are offshoots of the 2007 election.

(b) The Court of Appeal, Benin, ordered a re-run after the hearing and determination of the appeal against the 2007 governorship election.

(c) The appellants and the 1st and 2nd respondents were contestants at the election and the re-run.

(d) The re-run election took place on 6th January, 2011 and the result which was declared on 7/1/11 brought the 1st respondent back to power as the governor of the State.

(e) Since the original tenure of the governor based on the 2007 election was to expire on the 28th of May, 2011 – he joined the gubernatorial contest of April, 2011.

(f) It is however noteworthy that the origin of the appeal before the Court is not a product of the April, 2011 election- the 2nd term tenure of the 1st respondent but against his first term in office which tenure had expired in May, 2011.

A judgment of the Federal High Court FHC/ASB/CS/20/2011 delivered on 15th March, 2011 in respect of the petition of the appellant was a judgment in rem which brought into focus the futility of the appellant’s latest petition. I find it convenient at this stage to define a judgment in Rem for the advantage of the appellant.

“A judgment in rem may be defined as the judgment of a Court of competent jurisdiction determining the status of a person or thing as distinct from the particular interest of a party to the litigation.

P.29

Apart from the application of the term to persons, it must affect the “res” in the way of condemnation, forfeiture, declaration, status or title.

(a) Examples are judgment of a Court over a will creating the status of administration.

(b) Judgment in a divorce by a Court of competent jurisdiction dissolving a marriage declaring the nullity or affirming its existence.

(c) Judgment in an election petition. The feature of a judgment in rem is that it binds all persons whether a party to the proceedings or not. It stops anyone from raising the issue of the status of person or persons or things, or the rights or title to properly litigated before a competent Court. It is indeed conclusive against the entire world in whatever it settles as to status of the person or property. All persons whether party to the proceedings or not are stopped from averring that the status of persons is other than the Court has by such judgment declared or made it to be”.

Okpalugo vs. Adeshoye (t996) 10 NWLR pt. 476, pg. 77., Fan trades Ltd. vs. Uni Association Co. Ltd. (2002) 8 NWLR Pt. 770, pg. 699., Ogbahon vs. Reg. Trustees CCCG (2002) 1 NWLR pt. 749, pg. 675, Olaniyan vs. Fatoki (2003) 13 NWLR pt. 837, Pg. 273.

The suit is unconstitutional to the effect that neither the Constitution nor the Electoral Act has made provision for challenging an expired tenure of a governor by way of petition based on an election to the office. Any litigation against the office of a governor shall only be viable when it is brought during the four years in office. Any claim to the office ought to abate as soon as the term expired. The office of the incumbent governor of Delta State challenged by the appellant expired on May 28, 2011. As I said earlier on his appeal is not against the 2nd term of the 1st respondent.

P.30

The appellant’s continual litigation is like flogging a dead horse or beating about the bush to find a way where there is none. I am of the impression that the appellant is lost in the abyss of self ambition.

The consent of the President to a Bill in respect of the Constitution of any country in the world particularly in Nigeria is an exercise of Federal Legislative power. Such Bills must be passed by both the Senate and the House of Representatives and assented to by the President. The relevant laws are the Interpretation Act and Section 58(1) of the Constitution.

Section 2 of the Interpretation Act Cap. 123 Laws of the Federation of Nigeria, Vol. 8, 2004 reads:-

“An act is passed when the President assents to the Bill for the Act whether or not the Act then comes into force”.

Section 58(1) of the 1999 Constitution provides that:-

“The power of the National Assembly to make Laws shall be exercised by Bills passed by the Senate and the House of Representatives and except as otherwise provided by subsection (5) of this section assented to by the President”.

Subsection (5) states that:-

“Where the President withholds his assent and the Bill is again passed by each house by two thirds majority, the Bill shall become Law and the assent of the President shall not be required”.

This was not the position during the passage of the alteration Bills. The 2nd Alteration Bill for the amendment to the Constitution passed on the 29th of November, 2010, was signed by the President on the 10th of January, 2011. If the of cause action in the appeal accrued on the 7th of January, 2011 – the applicable law is Section 246(3) of the original Constitution and that makes the Court of Appeal the final Court. The consolidated appeals before this court are an abuse of the process of this Court. They raise academic and glaringly unconstitutional questions. This Court is a creation of Statute, with specific jurisdiction, it is not hungry for jurisdiction, neither can it be stampeded into succinctly assuming the duties of the legislature by indirectly expanding the Law. An Apex Court must never make hollow orders. The appeals are struck out for lack of jurisdiction. I abide the consequential orders made by my learned brother in the lead judgment.

P.31